NDA, Redacted

The multiple ironies of what happened here, early in the Covid-crisis, will not be lost on many. The SDT have stayed the SRA’s prosecution of Mark Mansell for professional misconduct. The case arises out of the NDAs negotiated for Harvey Weinstein against Zelda Perkins and Rowena Chiu. The saga ends, if it has ended, where it started, in controversy silenced.

Mansell’s legal team seem to have thrown the kitchen sink at the SRA: arguing unfairness because of political motivation; concessions to political pressure; failure to follow proper process on health concerns; a case made without legal merit; and with significant evidential problems given the effluxion of time and the way the case has become a cause celebre.

Tl;dr they lost on all these points.

We learn a bit about what Mansell’s case was looking like and the timescales involved, but we do not hear why it has been kept secret for this time, the hearings were in the Spring of last year or why the SDT published this today (Jan 2021) as Solicitor Z and the SRA identified him straightaway (it will not, I surmise, be a mistake: something has gone on). I might come back to some of the points being made in Mr M’s favour in a later post. They seemed pretty questionable to me on a very quick read.

We see the usual prolixity of an SDT judgment [I know, concision, c’est moi] and they also seem to have fumbled the issue of how a stay was handled sufficient to put themselves on the back foot. Mansell’s team appear to intimate the potential for a judicial review if the stay case goes against them, but the decision boils down to this: the reason that the case has been stayed is the ill-health of Mr Mansell. The main excerpted findings, I think can be summarised thus:

The agreed medical evidence was clear; the Respondent was unfit [REDACTED] to undergo the rigours of a hearing.  The risk to him arose, not just as regards any substantive hearing, but in the continuation of the proceedings in any form.  He was not fit enough to provide instructions….

The Tribunal did not consider that there were any reasonable adjustments that could be made to its usual procedures that would enable the Respondent to participate whilst reducing the risk he faced….

The Tribunal considered that the Respondent’s inability to take the necessary steps in the preparation of his defence meant that he could not participate effectively in the proceedings.

We have no information as to what the condition was, although it is clear there is some dispute as to the extent to which a risk to life was increased by the proceedings and the SRA argued for the case to go ahead, intriguingly suggesting the case might have settled if it had been so allowed (not to my mind a terribly appealing point) and of the broader need for the threshold for escaping proceedings through ill-health to be set high. On it’s face, though, the decision looks like the right one, if questions remain given the timescales and confidentiality.

What is intriguing is the point that Mr M had returned to work (part time and with adjusted duties). Some have suggested to me that if to work in BigLaw does not pose a risk to life [they may know better than I on that] then appearing before the SDT is not so different. I’d say the stress of appearing in a misconduct hearing might well, if stress was an underlying concern, be sufficiently more acute when being prosecuted to pose such a risk, but what do I know? I am not a medical expert and we do not have the benefit of their evidence. We do have some sense the experts may have overestimated what was required in dealing with the case when giving their evidence. The SDT makes this interesting point though: by being fit enough to work but not fit enough to continue with the proceedings, let alone give evidence, there is rather startling paradox:

It was of concern that the Respondent could continue in practise, but could not appear before the Tribunal as regards any allegations of misconduct.  Mr Dutton QC submitted that the Respondent should not be beyond the reach of regulation.  The Tribunal found that, whilst the Respondent was still subject to the same regulatory regime, the submissions as regards his ill-health (if accepted), meant that the Applicant would not be able to have proceedings against him determined by the Tribunal.  It was also likely that the Applicant would not be able to require an explanation from him as to his conduct in future (unless his condition significantly improved, which the experts considered unlikely), [REDACTED].

And:

The Tribunal considered that such a position was unsatisfactory; a solicitor in practise should be subject to the entirety of the regulatory regime including, where appropriate, proceedings before the Tribunal.  However unsatisfactory the position was, it did not mean that the continuation of the proceedings notwithstanding the Respondent’s medical condition was a fair outcome.  The mere continuation of the proceedings posed a significant risk to the Respondent’s life. 

Fit enough to work, not fit enough to be held accountable for work.

It’s a frustrating end: Mansell can’t put his case properly, Perkins and Chiu can’t give their evidence. We can’t hear it or see a resolution. But the central point remains this: the SDT saw and took the time to assert the public interest in the SRA bringing this case. They accepted the case was arguable (as one would expect) and took no opportunity to give ground to the arguments that, in essence, this was just lawyers doing what lawyers do.

Findings of fact were thin on the ground, given the nature of the hearing, but there was one.

The Tribunal found that the purpose of the Agreements was to prevent the disclosure of Confidential Information, which included, indeed was directed to, the allegation of serious sexual assault.

The lesson for lawyers remains clear that such agreements must be handled with great care.

6 thoughts on “NDA, Redacted

  1. Sorry, this is becoming ridiculous. I have not seen the NDA, but I suspect that you have not either. Before retirement I was involved with a lot of NDAs, and I never saw one that did not carve out disclosure to the police or regulators. And if the person taking the restriction, and normally being paid for it, can talk to doctors about abuse but not the name of the abuser, the idea that this is wrong is preposterous. Why does a doctor need to know the name of the perpetrator.?This is a fake prosecution by a regulator which is interested, not in truth, but in its reputation. Which in enforcement terms is becoming a joke.

    I love your postings, but on this one you have forsaken an academic view and become an advocate for narrow minded views.

    Allan

    1. Hello Allan. I have seen the published bits of the NDA which are relevant and have referred to them in detail a number of times on the blog. This NDA did not in my view carve out disclosure to the police. I am really struggling to see what you are objecting to in this post I am afraid.

      1. I suspect that my views are quite complex with an irrational edge.

        The first thing is that if this poor man is at risk, I would hope the whole thing could be over with and him left alone. That was the immediate cause of the email.

        The NDAs that I dealt with or drafted (which were numerous) were in a commercial context, and they always had carve outs for communications with the authorities including regulators, although a few first drafts did not. If this one does not then I am surprised, but I accept what you say. That said, I would be surprised if a court enforced a NDA to prevent the reporting of a crime. although I have not researched the point.

        My own view has been throughout that the best way to have dealt with this issue was not prosecution, but clear guidance by the regulator. And why prosecute just one of the lawyers involved?

        Also in the mix is the sour taste left by my own dealings (as a compliance officer, not for my own actions) with the enforcement side of the SRA. Like a lot of solicitors I felt that it was not good enough. I know that the SRA has made improvements since I retired, but I still hear about failures in its processes form unretired friends. This I think is the irrational edge.

        I love your columns and rarely disagree so keep up the good work.

      2. Allan, thank you very much indeed for responding further. I think the leave him alone point is perfectly reasonable. I also agree that it is worth wondering, at least, about the fact that the other solicitors were not proceeded against, although I think it is probably a different kind of case against them. I too have picked up the general problems the SRA’s enforcement, and although I have no direct knowledge of it, what you say fits with what I apprehend.

        Thanks too for the final words. I love writing it; even if I don’t really like the antagonistic argument it sometimes, necessarily I suppose, find it provokes. I have persisted with this case not out of any ill will to Mr M, who I wish all good health to, but because I got a surprising level of very strongly supportive responses from solicitors when I first ran the argument about what was wrong with the NDA. There really has been, still is?, a problem. I agree too that the future (and the SRA really have worked hard I think on guidance, producing positive iterations) is more important. Whether the decision to prosecute was right here really depends on the evidence and responses to the initial complaint. I don’t know enough about that to form a view. But I would say that enforcement, and of high quality, is vital too.

  2. One mental health issue which was new to me until this week was “contemplating” suicide – not to be confused with attempting the same. It’s far easier. I can even do it as I type this. Decided not to, obviously.

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